Late last week, the Wild Fish Conservancy sent notice of intent to sue under the federal Endangered Species Act to the members of the Washington Fish and Wildlife Commission, alleging that WDFW’s longtime Chambers Creek steelhead hatchery program violates Section 9 of the ESA by causing take of Puget Sound Chinook, Puget Sound steelhead, and bull trout. The Chambers Creek steelhead is the main hatchery steelhead produced in Washington–it has its origins in collection of adult winter-run fish from Chambers Creek in south Puget Sound back in the 1920s, and the hatchery program is the reason why sportfishers are able to retain steelhead in Puget Sound today.
This latest notice of intent to sue comes on the heals of the Wild Fish Conservancy’s actions under the ESA to attempt to shut down the Elwha Tribe’s hatchery program on the Elwha River. Those actions started with a series of 60 day notices back in 2011, and the eventual filing of a suit against federal officials, agencies, and officials of the Elwha Tribe. That suit is still pending, but the plaintiffs have lost motions at every turn, including Judge Settle’s pointed denial of an early Motion for Summary Judgment filed by the Wild Fish Conservancy; an order granting the federal Defendants’ request for a protective order (followed by a grant of fees); an order dismissing the Elwha Tribe defendants; and finally an order denying a request by the plaintiffs to supplement the record to include materials from a website and a newspaper article, despite the clear Administrative Procedure Act command to courts to consider these types of actions based on the record before the agency at the time the decision is made.
The lesson from the first suit is that we can probably expect this new 60 day notice to lead to litigation, and that litigation will be contentious. From a policy perspective, this notice raises the temperature on the wild versus hatchery steelhead debate–and it is worth noting that it may fracture the alliance between conservationists and sportfishers that exists over the common interest to improve fish habitat. Personally, I’ve got mixed feelings on this one–as a fisherman, I’d love to see healthy, viable, wild stocks of steelhead in Puget Sound, but as a lawyer I question whether the litigious stance taken by the Wild Fish Conservancy will help achieve their goals. Citizen suits can be high profile and draw lots of attention. But, this litigation comes with the real risk of Wild Fish Conservancy alienating WDFW or other potential partners, so I wonder if this proposed suit will result in damaging Wild Fish Conservancy’s relationship with WDFW and other state agencies with no resulting change in the practices of those agencies.